Citation Nr: 1336906 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-36 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1970 to December 1971, and had additional reserve service from December 1971 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In September 2011, the Board remanded the issue on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The additional development has been completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of this appeal, jurisdiction over the case was transferred to the RO in Manila, the Republic of the Philippines. The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran has a current disability of osteoarthritis in the right knee. 2. The Veteran injured his right knee while parachuting in service. 3. The Veteran has experienced "continuous" symptoms of a right knee disability since service separation. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for a right knee osteoarthritis have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim for service connection for a right knee disability has been considered with respect to VA's duties to notify and assist. Particular consideration has been given to the additional development that may be required by the Veteran's recent contention that his current right knee disability is related to a broken leg he sustained while on reserve duty. See March 2005 VA Form 21-4138. As discussed in more detail below, however, the Board finds that the Veteran's claim for service connection for a right knee disability is fully substantiated by evidence already of record, as the evidence of record supports a grant of presumptive service connection for right knee osteoarthritis. Given the favorable outcome (grant of presumptive service connection), further development of evidence, even if pertinent to a different theory of entitlement, could not result in any additional benefits, as the grant of service connection under any theory is a full grant of the benefit sought, regardless of the theories of entitlement raised pursuant to that benefit. For these reasons, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for Right Knee Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, osteoarthritis - a form of arthritis - qualifies as a "chronic disease" under 38 C.F.R. § 3.309(a). See Dorland's Illustrated Medical Dictionary 1344 (32d ed. 2012) ("osteoarthritis" and "degenerative joint disease" are interchangeable terms). "Degenerative joint disease, or osteoarthritis, is defined as arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of apposing joint surfaces with consequent distortion of joint position usually without bony stiffening." Webster's Medical Desk Dictionary 501 (1986); see also Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) (nonprecedential decision citing medical authority to show that degenerative joint disease is a form of arthritis); Greyzck v. West, 12 Vet. App. 288, 291 (1999) (nonprecedential decision recognizing Stedman's Medical Dictionary 9, 1267 (26th ed.1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. at 506. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that he currently suffers from a right knee disability due to a knee injury he sustained in service. Throughout the course of this appeal - and dating back to the original December 1971 claim for service connection for a knee and ankle injury - the Veteran has attributed a knee disability to parachuting exercises he performed during active duty. Initially, the Board finds that the Veteran currently has a diagnosed disability of osteoarthritis in his right knee. During the November 2012 VA knee examination, the VA examiner diagnosed osteoarthritis in both knees. In addition, the VA examiner observed an old healed tibial fracture in the right leg. Next, the Board finds that weight of the medical and lay evidence of record is in equipoise on the question of whether the Veteran injured his right knee while parachuting in service. Service treatment (medical) records do not document any specific injury, treatment, or diagnosis relating to the Veteran's right knee; however, other evidence suggests that service treatment records are not a reliable indication of the Veteran's condition in this case. First, the December 1971 service separation examination may not accurately reflect the Veteran's right knee condition at service separation. Despite reporting excellent health, receiving a normal clinical evaluation of the lower extremities, and not noting any significant injuries in service, the Veteran filed a contemporaneous VA Form 21-526e in December 1971 to claim service connection for an "ankle/knee injury due to military parachuting Feb 72, April 72 [sic]." The Veteran did not specify which leg(s) was affected; however, Womack Army Hospital records show that the Veteran was treated for a left ankle sprain in April 1971. Although the April 1971 Womack Army Hospital record tends to show that the ankle and knee injuries are related, there is also evidence to show that the Womack Army Hospital records may be incomplete. On the same December 1971 VA Form 21-526e that included reference to an ankle injury and April 1972 [sic - 1971] treatment, the Veteran discussed torn ligaments, a knee bruise, and a February 1972 [sic - 1971] injury. While there are no service treatment or hospital records to support an earlier, separate knee injury, a March 1972 AGUZ Form 48 indicates that Womack Army Hospital had no record of the Veteran being treated at the hospital from February 1971 to April 1971. As the April 1971 treatment record shows, the Veteran was treated during this time period. Thus, given the December 1971 statement regarding a knee injury from parachuting, the incomplete disclosure on the December 1971 service separation examination, and later accounts of right knee injury relating to parachute jumping in service, there is evidence to support a separate and distinct right knee injury that is not documented in service treatment records. See November 2011 VA mental health evaluation; March 2005 VA Form 21-4138; January 2004 VA Form 21-526. The Veteran's DD Form 214 reflects completion of the Jumpmaster and Airborne Officers Courses, and receipt of the Parachute Badge in December 1970. See DA Form 66. Thus, even though the service treatment records currently associated with the claims file do not account for a right knee injury, the Veteran's account of an in-service knee injury related to parachute jumping is consistent with the circumstances, conditions, and hardships of his service and, therefore, is credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, resolving reasonable doubt on this question in the Veteran's favor, the Board finds that the Veteran injured his right knee while parachuting in service. Finally, the Board finds that the weight of the medical and lay evidence of record is in equipoise on the question of whether the Veteran has had continuous symptoms of a right knee disability since service separation in December 1971. Upon separation from service, the Veteran claimed service connection for a knee injury related to in-service military parachuting. See VA Form 21-526e. In January 2004, the Veteran sought to reopen this claim, characterizing his injury as a bilateral knee disorder that began in 1970 - a date consistent with paratrooper training. During a November 2011 VA mental health screening, the Veteran described how he injured his right knee during paratrooper training and expressed that he stopped jogging in the 1990s because of knee pain. During the November 2012 VA knee examination, the Veteran stated that his right knee problem has been progressively worse since its onset. Notwithstanding that the Veteran currently attributes his right knee condition to a broken right leg, which he says he broke in 1972, the other evidence of record is sufficient to show continuous right knee symptoms since service to meet the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The December 1971 claim for service connection for a knee injury, the January 2004 claim to reopen (claimed as service connection for a bilateral knee condition), and the Veteran's statements regarding knee pain since 1972 are sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of a right knee disability since service separation that was later diagnosed as (osteo)arthritis. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a veteran is competent to testify regarding continuous knee pain since service). For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran injured his right knee in service and has experienced "continuous" symptoms of a right knee disability of osteoarthritis since service separation in December 1971. As such, the criteria for presumptive service connection for a right knee disability under 38 C.F.R. § 3.303(b) based on "continuous" post-service symptoms, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for right knee osteoarthritis is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs